ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  20 May 2019

	DOCKET NUMBER:  AR20170016885

APPLICANT REQUESTS: reconsideration of an earlier request that the military records of her brother, a former service member (FSM) be corrected to show active duty service from 2 November 1941 to 23 December 1941.  She also request a personal appearance before the Board.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 149 (Application for Correction of Military Record)
* Self-authored statement from Next of Kin

FACTS:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20160000756 on 14 September 2017.

2.  The applicant states that she requests a correction of the FSM’s service record to show his military service date from 2 November 1941 to 23 December1941 and to reflect his date of death as 23 December 1941 as he was still in Army custody even after his reported separation of 9 December 1941.  The applicant also requests a rendering of his reported discharge on 9 December 1941 in his personnel files as ineffective.  The applicant believes the record is in error because the Army re-certification acknowledged existence of records of his death, but had not explained the fact of his death based on custodial records as to reveal its circumstances, notwithstanding, the earlier reported separation of the FSM.  Records as new evidence provided by Department of Veteran Affairs (VA) elicited that the FSM was not actually separated but died in the battlefield on 23 December 1941.  In effect, records and dispositions made by the U.S authorities and Philippine Commonwealth Army, United States Armed Forces Far East (PA USAFFE) are harmonized and reconciled particularly his beleaguered states and payment of arrears, supported by Army Regulations.  She also request a personal appearance before the Board.

3.  The applicant provides:

	a.  Statement to the Director of the ABCMR that states she is asking for a reconsideration.  She further states that the FSM was assigned to Company B, 1st Battalions, 72nd Infantry, 71st Division, Philippine Commonwealth Army, United States Armed Forces Far East and that the FSM was on the payroll, meaning he was recognized for serving the military.  The FSM did not receive proper guidance and was not notified of his deferred order to discharge him from the military and the order was not executed.

	b.  A written statement to President Trump detailing the reason for the request states that the applicant is asking for help regarding the claim for VA benefits for the FSM.

	c.  Sworn witness statement from service members who served with FSM that states dates, time and locations where the FSM was present with the unit.

	d.  Letter received from the General Headquarters Armed Forces of the Philippines Office of the Adjutant General, dated 21 May 1956 stating that death benefits for veteran [FSM] have been disallowed by the VA because the veteran had no United States Army Force in the Far East (USAFFE) status and/or his death had no service connection.

	e.  Letter from the American Legion dated 22 December 1961, stating [FSM] was a private in Company B, 72nd Infantry, 71st Division of the Philippines from 2 November 1941 to 9 November 1941 and after being erroneously accepted, he was relieved of service on 9 December 1941.  Records indicate that the veteran did not die while in the serviced.

	f.  Letter from Department of the Army (DA), Office of the Adjutant General dated 20 March 1981 States that an examination of the [FSM] records showed a re-certification of his military service was furnished to the VA and to please contact that office for information regarding benefits.

	g.  Letter from the National Personnel Records Center (NPR) dated 13 April 2015 stating that [FSM] was killed in action on 23 December 1941.  However, that evidence was based on affidavits made by fellow Soldiers which were rejected due to the special order showing separation on 9 December 1941.

	h.  Letter from the (VA) dated 22 October 2015 showing the date of death of the [FSM] as 23 December 1941.

4.  A review of the [FSM] available service information shows that on 9 December 1941 by special order the he was discharged from the Philippine Commonwealth Army for not meeting the age of a majority for induction, which was 21 years of age.  

5.  ABCMR record of proceedings with a date of 7 September 2017 states that the Board voted to deny the application because evidence presented does not demonstrate the existence of a probable error or injustice and the overall merits of this case are insufficient as a basis for correction of the records of the [FSM] because:

	a.  Based on available evidence the [FSM] was not eligible for induction because he was less than the age of majority, which was 21

	b.  Philippine Commonwealth Army records list the [FSM] as beleaguered status from 8 Decembe4r 1941 to 23 October 1944, that he died at Pozorrubio Pangasinan, on 23 December 1944

	d.  On 11 June 1954, an adjudication officer informed the [FSM’s] mother that they had not received any change in the prior DA showing that the [FSM] had no recognized guerrilla service nor was he a member of the commonwealth Army of the Philippines in the service of the Armed Forces of the United States.  The mother was advised that unless the Army re-determines, the service of the [FSM] the VA could not take any action on her claim.

	e.  On 11 September 1959, a contact officer informed the family that the DA reported that the [FSM] has no valid service in the Armed Forces of the Unites States.  It appears the term re-certification has been misinterpreted or misunderstood by the [FSM] family to mean that the DA had previously certified that the [FSM] had valid military service in the Philippine Commonwealth Army, USAFFE.  However, evidence of record fails to show the [FSM] had valid military service

	f.  The determinations rendered for the Commonwealth Army of the Philippines (including recognized guerillas) were final as of 30 June 1948 and should not be altered. 

	g.  Evidence of record shows a member would be released from custody and control of the Army because of void enlistment or induction if, upon receipt of satisfactory proof of date of birth, it is shown that he was less than age of majority at the time of enlistment or induction and that he had not yet attained that age. 

	h.  On 14 September 2017 ABCMR provided a letter to the applicant denying the application to correct the [FSM] military records.

6.  By regulation, applicants do not have a right to a hearing before the ABCMR. The Director of the ABCMR or the chair of an ABCMR panel may grant a formal hearing whenever justice requires.

7.  By regulation, service regulations Army Regulation (AR) 601-210 (Personnel Procurement Regular Army and Reserve) and AR 635-200 (Active Duty Enlisted Administrative Separations) regulations have addressed the procedures for defective enlistments and inductions.

	a.  A Soldier will be released from custody and control of the Army because of void enlistment or induction if, upon receipt of satisfactory proof of date of birth, itis shown that he was less than age of majority at the time of enlistment or induction and that he had not yet attained that age.

	b.  The regulations also show that upon determination that a period of service is void, the discharge authority will issue an order releasing the Soldier from custody and control of the Army. A discharge is the complete severance from all military status gained by enlistment or induction.

BOARD DISCUSSION:

After reviewing the application and all supporting documents, the Board determined that it could reach a fair and equity decision in the case without a personal appearance from the applicant.

Additionally, the Board determined that relief was not warranted based upon insufficient evidence either provided by the applicant or found within the record showing an error or injustice which would warrant changing the existing record of the FSM.

BOARD VOTE:

Mbr 1	Mbr 2	Mbr 3

:	:	:	GRANT FULL RELIEF

:	:	:	GRANT PARTIAL RELIEF

:	:	:	GRANT FORMAL HEARING

X	X	X	DENY APPLICATION




BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.
	 
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.




REFERENCES:

1.  The Philippine Island became a United States possession in 1898 when they were ceded from Spain following the Spanish-American War.

2.  Act of 2 February 1901 (36, 21 Stat. 748, 757), Filipino Companies of the U.S Army, authorized the creation of:

	a.  “Old” (or “Regular”) Filipino Scouts, which were compromised of “natives” of the Philippine Islands who “enlisted”, or were provisionally appointed as officers, “for service in the U.S Army” and were “organized as scouts.” (The U.S Supreme Court has recognized that “old” or “regular” Filipino Scouts were part of the U.S Army.)

	b.  Companies for the Regular Army (RA),” to be comprised of “natives” who “enlisted,” or were provisionally appointed as officers, “for service in the U.S Army” [as “Old” or “Regular” Filipino Scouts].  (This provision of the statute established that members of such companies were members of the U.S Army.)

3.  Military Order issued by President Franklin D. Roosevelt, The White House, dated 26 July 1941: "Organized Military Forces of the Government of the Commonwealth of the Philippines Called into Service of the Armed Forces of the United States."  The order called and ordered into the service of the U.S. Armed Forces, for the period of the existing emergency, all of the organized military forces of the Government of the Commonwealth of the Philippines and placed them under the command of a General Officer of the United States Army, to be designated by the Secretary of War from time to time.

4.  Headquarters, USAFFE, General Order Number 46, dated 18 December1941, under the command of General Douglas MacArthur, ordered the entire Philippine Army into the USAFFE and mobilized them

5.  Public Law 77-490 (77th Congress), Missing Persons Act (MPA), approved7 March 1942, provided for continuing payment of pay and allowances of personnel during periods of absence from post of duty, and for other purposes.  When the 12-month period from date of commencement of absence was about to expire and member's status was unchanged, full review of case was to be made.  If presumed still living, missing status continued; otherwise, a finding of death (Effective from 8 September 1939, through termination of war, and for 12 months thereafter, unless terminated earlier by the U.S. Congress or President.).

6.  The United States Forces in the Philippines (USFIP) replaced the Armed
Forces of the United States in the Philippines ((AFUSIP) in March 1942.
7.  Service regulations and Army separation regulations have addressed the procedures for defective enlistments and inductions.

	a.  A Soldier will be released from custody and control of the Army because of void enlistment or induction if, upon receipt of satisfactory proof of date of birth, itis shown that he was less than age of majority at the time of enlistment or induction and that he had not yet attained that age.

	b.  The regulations also show that upon determination that a period of service is void, the discharge authority will issue an order releasing the Soldier from custody and control of the Army. A discharge is the complete severance from all military status gained by enlistment or induction.

8.  AR 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.

	a.  The regulation shows that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

	b.  Paragraph 2-11 states that applicants do not have a right to a hearing before the ABCMR. The Director of the ABCMR or the chair of an ABCMR panel may grant a formal hearing whenever justice requires.


ABCMR Record of Proceedings (cont)	 AR20170016885
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